JOHN SHIVERS V ST MARY'S MEDICAL CENTER OF SAGINAW INCAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
Saginaw Circuit Court
LC No. 05-056430-NM
SUSAN SCHMIEGE, M.D., and VALLEY
Advance Sheets Version
ST. MARY’S MEDICAL CENTER OF
SAGINAW, INC., doing business as ST. MARY’S
MEDICAL CENTER and BAPINEEDU
Before: Owens, P.J. and Murray and Servitto, JJ.
In this medical malpractice case, defendants Susan Schmiege, M.D., and Valley
Anesthesia, P.C. (hereafter defendants), appeal as of right from a judgment following a jury trial
wherein the jury found in favor of plaintiff and awarded almost $1.8 million in economic and
noneconomic damages. We affirm in part, reverse in part, and vacate the future economic
damages award of $522,000.
I. FACTS AND PROCEDURAL HISTORY
In 2002, plaintiff was seventy years old. He was admitted to defendant St. Mary’s
Medical Center of Saginaw, Inc., to have his bladder removed because he was experiencing a lot
of bleeding. He did not suffer from any central nervous system disorders or arm or leg weakness
at that time.
The surgery did not go smoothly. At one point, a blood vessel was damaged and because
of potential damage to plaintiff’s colon from reduced blood supply, a colonoscopy had to be
performed during the middle of the operation. He was in surgery about six hours. As he came
out of the anesthesia, the nurse caring for him reported some weakness in both his hands. That
condition was unchanged by the time he was moved to intensive care. Later that evening,
defendant Dr. Schmiege noticed that plaintiff’s left arm and hand were normal but the right arm
was “abducting” (involuntarily moving up, away from his torso). As nurses examined plaintiff
through the night, they recorded that his condition was not improving, and by around midnight,
he had lost sensation in both hands. By 3:47 a.m., he had lost feeling in both arms and could not
bend or move his fingers.
In the morning, doctors arrived and discovered that plaintiff could not move his left arm
at all and his right arm had “significant neurological deficits.” Doctors viewed this as a medical
emergency and performed an emergency decompressive cervical laminectomy. However, by
that time plaintiff had lost most of the use of his hands and arms. Plaintiff now requires a
significant level of care and is in considerable pain from this injury.
After a trial, the jury returned a verdict finding Dr. Schmiege was negligent and that her
negligence was a proximate cause of plaintiff’s injuries. The jury awarded past and future
economic and noneconomic damages totaling $1,750,500.
Defendants argue that plaintiff failed to prove causation in that plaintiff failed to produce
sufficient expert testimony proving that a delay caused him to suffer a worse injury than he
would have suffered without the delay. We disagree.
A. Standard of Review
Defendants raised this issue in their motion for judgment notwithstanding the verdict or a
directed verdict. This Court reviews de novo a trial court’s decision on such motions. Smith v
Jones, 246 Mich App 270, 273; 632 NW2d 509 (2001). An appellate court “review[s] the
evidence and all legitimate inferences in the light most favorable to the nonmoving party. Only
if the evidence so viewed fails to establish a claim as a matter of law, should the motion be
granted.” Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000).
First, this is not a “loss of opportunity” case. In Stone v Williamson, 482 Mich 144; 753
NW2d 106 (2008), Chief Justice TAYLOR explained in his opinion that this doctrine is available
“‘where a plaintiff cannot prove that a defendant’s actions were the cause of his injuries, but can
prove that the defendant’s actions deprived him of a chance to avoid those injuries.’” Id. at 152,
quoting Vitale v Reddy, 150 Mich App 492, 502; 389 NW2d 456 (1986). This case is even less
of a “lost opportunity” case than Stone, because there, had the plaintiff not sought medical
treatment at all, the aneurysm in his leg would have ruptured and likely would have killed him.
Here, had plaintiff not sought medical treatment, he would have had bloody urine and functional
arms. In Velez v Tuma, 283 Mich App 396; 770 NW2d 89 (2009), the plaintiff did not plead a
“lost opportunity” claim but only a traditional medical malpractice claim. Despite being
instructed on “loss of opportunity,” the jury found in favor of the plaintiff. This Court fully
analyzed the relevant caselaw, agreed with the plaintiff that hers was a traditional medical
malpractice claim, and affirmed the jury’s decision. This case is factually and legally very
similar to Velez, and we also conclude that plaintiff pleaded a traditional medical malpractice
Turning to defendants’ claim regarding the sufficiency of the evidence, the record does
not reveal any testimony by a neurosurgical expert stating that an earlier laminectomy would
have had a specific, better result. However, the evidence described by plaintiff, and reasonable
inferences from it, is taken in the light most favorable to him. Here, the testimony clearly
revealed that time was a factor. The evidence cited by plaintiff shows that his symptoms grew
worse through the night. When defendant Dr. Bapineedu Maganti arrived in the morning, he was
dismayed at plaintiff’s condition and did his best to find out why nothing had been done earlier.
Dr. Schmiege testified that she agreed with Dr. Maganti’s assessment that plaintiff’s condition
during the night qualified as a medical emergency. When Dr. Mark W. Jones found out what
was happening, he ordered an immediate MRI and performed the laminectomy as soon as
possible. That procedure did do a bit to relieve plaintiff’s condition. From this evidence, we can
infer that an earlier procedure would have helped.
Defendants argue that Dr. Schmiege’s actions did not cause plaintiff’s injury and that, if
anyone caused plaintiff’s injury, it was one of the nurses. They note that at 7:00 p.m., when Dr.
Schmiege last examined him, plaintiff exhibited to her no warning signs of neurological
impairment. This indeed is what Dr. Schmiege noted, but this Court examines all the evidence
in a light most favorable to plaintiff. The jury may have decided that this was the point at which
Dr. Schmiege acted negligently and that she should have diagnosed plaintiff’s bilateral problems
at 7:00 p.m. Also, there is a dispute over what happened when Nurse Diana R Kazmerski,
concerned about plaintiff’s unimproved condition, paged Dr. Schmiege around midnight. Dr.
Schmiege testified that she never got that call, but Nurse Kazmerski testified that she made the
call, it was answered, and the person whom she thought was Dr. Schmiege said she would be
right in to see plaintiff. The next nurse on duty, Nurse Sarah Passariello-Hartman, testified that
someone she thought was Dr. Schmiege examined plaintiff at 2:00 a.m., but Dr. Schmiege
testified that she was at home at that time. The jury, weighing the credibility of these two
witnesses, could have been persuaded that Dr. Schmiege was trying to protect herself or simply
did not remember accurately what happened that night. This testimony is sufficient evidence to
allow the jury to infer that Dr. Schmiege was negligent in her treatment of plaintiff and that her
failure caused a delay that cost plaintiff the use of his arms.
III. JURY AWARD OF FUTURE ECONOMIC DAMAGES
Defendants argue that there was no evidence presented showing that plaintiff would
suffer any future economic damages. We agree.
A. Standard of Review
This issue was raised in defendants’ motion for a new trial. This Court reviews for abuse
of discretion a trial court’s decision whether to grant a new trial. Barnett v Hidalgo, 478 Mich
151, 158; 732 NW2d 472 (2007). “An abuse of discretion occurs when the decision results in an
outcome falling outside the range of principled outcomes.” Id.
Defendants contend that plaintiff’s counsel argued for attendant care services as an
element of future economic damages. On the contrary, in context, counsel’s reference to
attendant care was a “suggestion”—as counsel himself put it—regarding how to calculate
plaintiff’s “pain and suffering [and] intimacy,” which of course are noneconomic damages.
Counsel argued the following to the jury in the context of noneconomic damages:
[H]ow do you—calculate items of this type? I’m going to make a couple
. . . But if you try to put it into real life terms, for example, instead of
requiring the assistance of his daughters, if [plaintiff] had an aid, a full-time aid,
even at minimum wage and they were with him 16 hours a day, and, remember,
he needs care 24 hours a day, you know, it doesn’t take long to do a calculation.
And if you paid them more than minimum wage, if they are skilled workers,
because that’s what he needs to or could benefit from in order to make his life that
much easier than it currently is, those calculations quickly, in the course of a year,
are in excess of 50 to $70,000.
Would that be fair compensation for Mr. Shivers in order to cope for the
balance of his life and coping the previous five years with the pain that he suffers?
Buttressing this conclusion is that counsel—after listing braces, rails, handicaps, and a
hospital bed as examples of economic damages—returned to figures similar to the estimated cost
of attendant care services in referencing noneconomic damages. Specifically, counsel stated:
His non-economic damages leads us back here to this difficult issue.
Given the same circumstances, does $50,000 every year, does $100,000 every
year, is that fair compensation for complete loss of the use of your hands to do the
things that we all take for granted or is that too minimal? As I said, there is no
book that I can look to to help you, and you are going to have to exercise your
Consequently, during closing argument plaintiff did not specifically request damages for
attendant care services as an element of the jury’s miscellaneous future economic damages
However, plaintiff did present evidence that his family members assist him with eating,
getting dressed, using the bathroom, and basic hygiene. And from this evidence, it is reasonably
certain that plaintiff would sustain future economic damages from his disability. Hofmann v
Auto Club Ins Ass’n, 211 Mich App 55, 108; 535 NW2d 529 (1995). Notably, however, plaintiff
presented no evidence from which the jury could calculate such damages. While “mere
uncertainty as to the amount will not preclude the right of recovery,” Bonelli v Volkswagen of
America, Inc, 166 Mich App 483, 511; 421 NW2d 213 (1988) (quotation marks and citations
omitted), and damages need not be ascertained with mathematical precision, a reasonable basis
must exist for their computation, Berrios v Miles, Inc, 226 Mich App 470, 478-479; 574 NW2d
677 (1997). See also Gilbert v DaimlerChrysler Corp, 470 Mich 749, 767; 685 NW2d 391
(2004) (a jury’s estimation of future economic loss must have support in the record).
While a jury may use its good sense and sound judgment to infer that plaintiff would
require professional attendant care given the facts of this case, Meier v Holt, 347 Mich 430, 447;
80 NW2d 207 (1956), the only mechanism for calculating damages for attendant care was
counsel’s closing argument, and as pointed out previously, such a reference was related to the
calculation of noneconomic damages.1 Additionally, there was no evidence submitted at all
about what attendant care costs were, what the typical rate was for such services, what plaintiff’s
life expectancy was, what the minimum wage was2, or any other possible source of evidence
upon which the jury could render an award.
This case is similar to what was addressed by this Court in Attard v Citizens Ins Co of
America, 237 Mich App 311, 321-322; 602 NW2d 633 (1999), where we held that the
defendant’s motion for judgment notwithstanding the verdict should have been granted on the
basis of insufficient evidence concerning the cost of health care related items:
[A] trial court should grant a party's motion for JNOV with respect to
certain damages if the jury was permitted to speculate concerning the amount of
those damages. [Farm Credit Services of Michigan’s Heartland, PCA v Weldon,
232 Mich App 662, 680; 591 NW2d 438 (1998)]. See Scott v Boyne City, G & A
R Co, 169 Mich 265, 272; 135 NW 110 (1912), in which our Supreme Court
stated that “a case should not be submitted to the jury where a verdict must rest
upon conjecture or guess.”
On the basis of the record in this case, we conclude that plaintiff presented
insufficient evidence from which the jury could have found that he suffered
$9,600 in damages related to the massage therapy or $2,100 in damages related to
the health-club membership. Plaintiff's physician, Dr. Eric Backos, testified that
he prescribed both massage therapy and a health-club membership for plaintiff.
However, plaintiff presented no evidence concerning either the cost of either the
therapy or the membership.
Even if the reference were to future economic damages, an attorney’s argument cannot alone
support the award because a jury’s verdict regarding damages must be supported by the record.
Gilbert, supra at 767.
Zaremba Equip, Inc v Harco Nat’l Ins Co, 280 Mich App 16; 761 NW2d 151 (2008), does not
stand for the proposition that the current amount provided by the minimum wage law falls within
the “common knowledge” of the jury, and other courts have been disinclined to so conclude.
See, e.g., Mendralla v Weaver Corp, 703 A2d 480, 485 (Pa Super, 1997) (estimated cost of
future medical expenses not within common knowledge of jury); Potter v Homestead
Preservation Ass’n, 97 NC App 454, 463; 389 SE2d 146 (1990) (Greene, J., concurring in part
and dissenting in part), rev’d on other grounds, 330 NC 569 (1992).
Thus, the simple fact that plaintiff presented evidence from which it may be inferred that plaintiff
would require professional attendant care cannot, ipso facto, “show the extent of the damages
as a matter of just and reasonable inference . . . .” Meier, supra at 447. Therefore, we reverse
the trial court’s order that denied defendant’s motion for judgment notwithstanding the verdict,
and vacate the future economic damages award of $522,000.
IV. APPLICATION OF DAMAGES CAP
Defendants argue that the trial court erred by (1) applying the higher damages cap, MCL
600.1483(1), (2) using the cap that was in effect when the judgment was entered, rather than the
cap in effect when the complaint was filed, and, (3) failing to apportion the capped damages to
past and future damages for purposes of calculating prejudgment interest. We disagree.
A. Standard of Review
This issue raises questions of statutory construction, reviewed de novo by this Court.
Young v Nandi, 276 Mich App 67, 70; 740 NW2d 508 (2007). However, in deciding whether
plaintiff’s injuries qualify for the higher cap, “the trial court is the finder of fact with regard to
these unique elements of damage.” Id. at 77.
(1) Which cap applies?
The trial court concluded that the higher cap applied because plaintiff suffered a total,
permanent functional loss of two limbs. To qualify for the higher cap, plaintiff must be
“hemiplegic, paraplegic, or quadriplegic resulting in a total permanent functional loss of 1 or
more limbs,” caused by the injury to his spinal cord. MCL 600.1483(1)(a)(ii). Plaintiff correctly
notes that “loss of 1 or more limbs” is inconsistent with the definitions of “hemiplegic,
paraplegic, or quadriplegic,” which all involve at least two limbs. But defendants are correct that
the wording used indicates two conditions must be met: hemiplegia, paraplegia, or quadriplegia
and a resulting loss of limb function. The same problem attends both of these interpretations:
defendants’ reading renders the second part of the clause unnecessary (the Legislature could
have simply said, “hemiplegic, paraplegic, or quadriplegic” for the same effect defendants argue)
and plaintiff’s reading renders the first part of the clause unnecessary (the Legislature could have
simply said, “The plaintiff has total permanent functional loss of 1 or more limbs.”). Both
interpretations are on equal ground as far as sensible readings, and defendants’ two-conditions
reading is more consistent with the actual language of the statute than that of plaintiff. The
Legislature might have wanted a person to qualify who was basically a paraplegic but retained
some functionality in one leg, for example. Thus, plaintiff must show he was “hemiplegic,
paraplegic, or quadriplegic” to qualify for the higher cap.
It is a fundamental rule of statutory construction that unless defined in the statute, a word
or phrase used in a statute should be accorded its plain and ordinary meaning. MCL 8.3a; Cain v
Waste Mgt, Inc (After Remand), 472 Mich 236, 245; 697 NW2d 130 (2005). Technical terms are
to be accorded their peculiar meanings. MCL 8.3a; Brackett v Focus Hope, Inc, 482 Mich 269,
276; 753 NW2d 207 (2008). There can be little debate that “hemiplegic,” “paraplegic,” and
“quadriplegic” are technical, medical terms. Defendants provide several medical dictionary
definitions in support of their assertion that paralysis of both arms does not satisfy any of these
conditions. However, the medical definition of “paraplegia” includes “superior paraplegia”:
“paralysis of both arms.” Stedman’s Medical Dictionary (26th ed). Further research into the
meaning of these technical, medical terms revealed that although lay people may have
preconceptions of what they may mean (e.g., no use of legs in paraplegia and no use of arms or
legs in quadriplegia), the medical community defines them on the basis of where along the spinal
column the injury occurs, rather than in how or where on the body the injury manifests itself.3
Likewise, “paralysis” is defined as “[l]oss of power of voluntary movement in a muscle through
injury to or disease of its nerve supply.” Stedman’s Medical Dictionary (26th ed). This is not
the same as “total loss of voluntary movement” that defendants would use to define the term.
See, e.g., the American Association of Neurological Surgeons’ website, which provides the
following definitions <http://www.neurosurgerytoday.org/what/patient_e/spinal.asp> (accessed
May 12, 2009):
Tetraplegia (a.k.a. quadriplegia) results from injuries to the spinal cord in
the cervical (neck) region, with associated loss of muscle strength in all four
Paraplegia results from injuries to the spinal cord in the thoracic or lumbar
areas, resulting in paralysis of the legs and lower part of the body.
The website’s glossary defines “hemiplegia” as “[p]aralysis of one side of the body.” Id.
These conditions can be either “complete” or “incomplete”:
A complete SCI [Spinal Cord Injury] produces total loss of all motor and
sensory function below the level of injury. Nearly 50 percent of all SCIs are
complete. Both sides of the body are equally affected. Even with a complete
SCI, the spinal cord is rarely cut or transected. More commonly, loss of function
is caused by a contusion or bruise to the spinal cord or by compromise of blood
flow to the injured part of the spinal cord.
In an incomplete SCI, some function remains below the primary level of
the injury. A person with an incomplete injury may be able to move one arm or
leg more than the other, or may have more functioning on one side of the body
than the other. An incomplete SCI often falls into one of several patterns. [Id.]
Notably, one of these “incomplete patterns” is “central cord syndrome,” described thus:
Central cord syndrome usually results from trauma and is associated with
damage to the large nerve fibers that carry information directly from the cerebral
cortex to the spinal cord. Symptoms may include paralysis and/or loss of fine
control of movements in the arms and hands, with far less impairment of leg
movements. Sensory loss below the site of the SCI and loss of bladder control
may also occur, with the overall amount and type of functional loss related to the
severity of damage to the nerves of the spinal cord. [Id.]
Plaintiff was diagnosed with central cord syndrome by Dr. Jones.
This more complex understanding of the terms used by the Legislature gives meaning to the
second part of the clause because it explains how a person may have one of the listed conditions
but still have lost the functional use of only one limb. The terms “hemiplegic, paraplegic, or
quadriplegic” do not describe a plaintiff’s symptoms (i.e., inability to use a limb) but the injury: a
particular kind of damage to the nervous system. In addition to the injury, a plaintiff must
exhibit a particular symptom: “total permanent functional loss of 1 or more limbs . . . .” Thus,
defendants are correct in reading the statute as containing two requisite conditions, but plaintiff
is correct in understanding that the medical conditions indicated by the Legislature are not as
narrowly drawn as defendants would read them. The trial court did not err by finding the higher
cap applies to plaintiff even though the limbs in question are his two arms.
The next question is whether the trial court clearly erred by finding as a matter of fact
that plaintiff had suffered total, permanent, functional loss of both his arms even though he can
use them when he uses his walker. As plaintiff notes, defendants presented no factual testimony
regarding the extent to which plaintiff can use his arms. The facts identified by plaintiff are in
the record: plaintiff testified that his arm braces helped him endure what would otherwise be
constant pain and that he could use his left hand to feed himself, but only with a plastic spoon
(metal is too heavy) and only certain foods. His right arm does not bend at the elbow.
Plaintiff argues that the Court must not overlook the presence of the word “functional”
preceding “use.” The trial court agreed that plaintiff’s ability to use his arms to brace himself on
his walker may be “using” his arms, but stated that it does not mean plaintiff has any “functional
use” of those limbs. We agree. Defendants’ reading replaces the word “functional” with “any,”
but this is impermissible revision of the statute as written. “Functional use” is similar to the
concept of “loss of use,” meaning “‘the destruction of the usefulness of the member, or the entire
member, for the purposes to which, in its normal condition, it was susceptible of application.’”
Cain, supra at 251 (quoting Fuller v Locomotive Engineers’ Mut Life & Accident Ins Ass’n, 122
Mich 548, 553; 81 NW 326 ). Plaintiff’s testimony showed that although he could use his
arms in certain ways to his benefit, they were no longer functional in the way that normal arms
are. The trial court did not err by concluding that plaintiff’s condition met the requirements
necessary to gain the benefit of the higher cap.
(2) Which year’s cap applies?
In Velez, supra, this Court stated:
The statutory cap is applied, if at all, at the time the judgment is entered,
and not when the complaint is filed. Thus, the amount of the statutory cap in
effect at the time the judgment is entered is the cap that applies to an award of
noneconomic damages. Until that time, a plaintiff has no right to enforce a
verdict awarding noneconomic damages. See Wessels v Garden Way, Inc, 263
Mich App 642, 653; 689 NW2d 526 (2004). [Velez, supra at 417.]
The verdict does not exist until the end of trial, sometimes years after the complaint is filed. The
court cannot review a verdict to determine if a cap applies until the verdict has been rendered.
The plain reading of this provision is that the court uses the limitation in effect at the time the
court is conducting the review; if the Legislature intended the court to apply a cap from another
time, it would need to say so. Under defendants’ proposed resolution, it would be possible to
have a verdict where the amount of noneconomic damages is below the cap in existence at the
time the judgment is entered, but above the cap in existence at the time the suit is filed. Dollar
figures are generally given to the jury in terms of present value, not their value at the time suit is
filed. Moreover, because the cap is adjusted yearly to reflect the cumulative annual percentage
change in the consumer price index, it is possible for the index to decrease the cap. The point of
the indexing is to keep the cap in line with current economic conditions. The successful plaintiff
has no award to enforce until judgment is entered.
(3) Apportioning cap among past and future damages
Defendants provide no legal support for their theory that the cap should be applied
proportionately to past and future noneconomic damages. The trial court held that it was bound
by the jury’s finding of a specific amount of past damages and it was bound to use that amount to
determine prejudgment interest. In Velez, supra, this Court addressed this issue and concluded:
For the same reason that applying the noneconomic damages cap to reduce
the jury's award . . . is not considered “ignoring” the jury's decision, applying the
cap to only the award of past noneconomic damages is not considered “ignoring”
the jury's decision; it is merely the application of the law. [Id. at 418.]
In Dawe v Dr Reuvan Bar-Levav & Assoc, PC, 279 Mich App 552, 598, 761 NW2d 318
(2008), Judge SMOLENSKI discussed at length the purposes of these statutes and concluded that to
give effect to the remedial nature of the prejudgment interest statute, the cap should apply to
reduce future damages first. Dawe, supra at 601-602 (SMOLENSKI, P.J., dissenting).
Although the majority opinion did not address this issue and decided the case on a
different basis, Judge SMOLENSKI’s dissent provides compelling reasoning on the issue. In
Dawe, the trial court apportioned the cap between past and future noneconomic damages just as
defendants here request. Judge SMOLENSKI noted that the purpose of the prejudgment interest
statute is to provide a deterrence, “‘encouraging settlement at an earlier time and discouraging a
defendant from delaying litigation solely to make payment at a later time.’” Id. at 599, quoting
Old Orchard by the Bay Assoc v Hamilton Mut Ins Co, 434 Mich 244, 253; 454 NW2d 73
(1990), overruled on other grounds by Holloway Constr Co v Oakland Co Bd of Co Rd Comm’rs,
450 Mich 608, 615-616 (1996). Concerning the trial court’s decision to proportionately apply
the cap, Judge SMOLENSKI concluded:
Although this solution appears equitable on its face, it is clear from its
application that it significantly undermines the remedial purposes of MCL
600.6013. Future damages include damages for harm that the plaintiff will suffer
during his or her remaining life. Further, future damages are reduced to a present
cash value and payable with the judgment. Hence, a plaintiff will invariably
receive timely compensation for his or her future losses. In contrast, past
damages reflect losses that the plaintiff has already incurred and for which he or
she has not yet received any compensation. [Dawe, supra at 601 (citations
The trial court did not err by declining to proportionately reduce plaintiff’s past and future
V. CALCULATION OF DAMAGES
Defendants argue that the trial court erred by subtracting the settlement amount from the
total, composite award because that resulted in defendants paying prejudgment interest on past
damages for which plaintiff had already received compensation. We disagree.
A. Standard of Review
This Court reviews de novo an award of interest pursuant to MCL 600.6013. Olson v
Olson, 273 Mich App 347, 349; 729 NW2d 908 (2006).
The trial court’s order clearly indicates that it was going to do as defendants asked in this
respect, and the sequence of figures follows defendants’ proposed order. Defendants have not
argued that the court erred in its basic calculations, nor have they pointed out what figures they
take issue with. They provide no reason to reverse the trial court’s decision, and their reply brief
makes no attempt to counter plaintiff’s argument. Thus, we decline to reverse the trial court.
VI. COLLATERAL SOURCE PAYMENTS
Defendants argue that either the jury improperly included medical expenses in its award
or it awarded far more in “miscellaneous” expenses than the evidence supports. We disagree.
A. Standard of Review
A trial court’s interpretation and application of MCL 600.6303 is a legal issue, reviewed
de novo. Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996).
MCL 600.6303(1) provides, in relevant part:
In a personal injury action in which the plaintiff seeks to recover for the
expense of medical care, rehabilitation services, loss of earnings, loss of earning
capacity, or other economic loss, evidence to establish that the expense or loss
was paid or is payable, in whole or in part, by a collateral source shall be
admissible to the court in which the action was brought after a verdict for the
plaintiff and before a judgment is entered on the verdict. [Emphasis added.]
Collateral source payments can only be used to reduce corresponding amounts awarded for the
same type of damages. Heinz, supra at 305. In Heinz, the jury award was for medical expenses
and lost wages combined. The trial court declined to reduce that by workers’ compensation
payments received because it had no way of knowing how much of the award was for medical
expenses and how much was for wage loss. This Court reversed, noting that “both types of
damages are ‘paid or payable’ by worker’s compensation.” Id. Thus, there was no problem
subtracting the payments under the collateral source rule.
In this case, however, the only evidence regarding economic damages concerned the inhome care plaintiff’s family provided him. The alleged collateral sources, including social
security and disability insurance, did not cover these expenses. The trial court correctly noted
that any attempt to parse the jury verdict into collateral-covered and noncollateral-covered
expenses would be pure speculation. Defendants are stuck with their own verdict form. Weiss v
Hodge (After Remand), 223 Mich App 620, 636; 567 NW2d 468 (1997).
Affirmed in part and reversed in part. We vacate the future economic damages award of
$522,000. No costs, neither party having prevailed in full. MCR 7.219.
/s/ Donald S. Owens
/s/ Christopher M. Murray